To their credit, judges are focusing on SMEs. But the government is not.
This month, the judiciary is launching two new schemes in the Rolls Building aimed at ‘making business litigation cheaper and simpler’, particularly for small and medium-sized businesses.
The ‘shorter-trial scheme’ will seek to get cases done and dusted in ten months, with the same judge, and a maximum trial length of four days.
The ‘flexible trial’ scheme will enable both sides to agree more flexible case management, with a view to making trials quicker and more simple.
Both schemes depend on both parties to the litigation agreeing to use them, so they will not necessarily help the small business that is going in to battle against a much bigger and better resourced defendant.
Let’s be honest, neither of these schemes is going to compensate for the onslaught that small clients have faced since April 2013 – namely, the loss of recoverability of after-the-event insurance and success fees from the losing party, making small claims uneconomic to bring; the staggering rise in court fees, which must be paid up front; and the lack of practical availability of the damages-based agreement as an alternative way of bringing a case – because the government has refused to permit the hybrid model.
While the loss of recoverability was part of Lord Justice Jackson’s reform package, and so had the blessing of the judiciary, the other problems are entirely government-induced; and government has failed to address them.
At least the judges are recognising the problem SMEs face in accessing the courts, and are trying to do something about it – even if they are powerless to reverse the poor government choices that have made it so hard for small-business clients to make use of our justice system.
Rachel Rothwell is editor of Litigation Funding magazine